The Digital Single Market and Copyright

Widely hailed as a move supportive of Europe’s creative industries, the EU copyright directive was the subject of Wednesday’s (September 12) vote by members of the European Parliament. There were 438 ballots for the directive and 226 against, with 39 abstentions.

As Publishing Perspectives reported, the parliament rejected on July 5 the copyright directive that had been adopted in June. That directive, part of the EU’s Digital Single Market development, is meant to protect copyright holders’ rights in the face of large tech companies’ use of online content in aggregations and links.

The plenary vote this week was on amendments to the previous legislation. Now, still further study in “trilogue”—three-way negotiations between the European Commission, the Council of the European Union, and the European Parliament—is to follow, for a final vote in January.

Article 13—one of two contentious areas of the legislation—requires major online tech players (like Facebook and Google) to be sure that the use of content on their platforms is covered by and in compliance with copyright agreements. Article 11 requires those platforms to pay news organizations before linking to their content, sometimes called the “link tax.”

Amendments to Article 13 restricted the scale of its effects to online platforms that hold “significant” levels of content and “promote” them, and it offers an exception for small businesses. Article 11 was amended to permit links that contain individual words from content being linked to, if not full phrases or headlines.

While the book publishing community—which is not the most directly impacted of the creative industries in the short term—has largely welcomed this legislation, there have been nay-sayers, as well, many of whom worry about free speech considerations.

For example, International Publishers Association president Michiel Kolman quickly issued his statement following the vote: “This vote recognizes the value of Europe’s creative industries.

“Technology companies and platforms are part of how creative works are distributed but this vote reinforces the underlying principle of copyright that creators and publishers deserve fair financial reward for their work.”

‘Yet Another Big Burden and Risk Factor’

But from Vienna, Publishing Perspectives has obtained a cautionary note from publishing consultant Rüdiger Wischenbart, who says, “Hardly any author—or [another] creator—will earn an extra dime from a future ‘ancillary copyright,’ or Leistungsschutzrecht in German, where that concept originated, given the typical author contracts with publishers.

“Second, and just as important, it will create yet another big burden and risk factor to any smaller or nonprofit online content platform that hosts ‘significant’ amounts of content that they necessarily will want to ‘promote’—which is the new formula in the proposal that has been approved by the European Parliament.

“So the debate about fundamental rules of conduct in the digital sphere became, more than ever before, a game limited to the ‘big boys’—big traditional media, big Internet platforms, and big politics. The rest of us may hope for a few softening amendments between now and the final vote in January. Yet we’ll be expected to stay still and wait for such benevolent gestures from behind the sidelines.”

Nevertheless, the Federation of European Publishers‘s (FEP) statement on the vote reads, “Today our MEPs [members of the European Parliament] made a historical decision to support culture, innovation, access to knowledge and creativity which are at the heart of the European Union.

“FEP welcomes the decision and wishes to especially thank the rapporteur, Mr. Axel Voss, who supported fair solutions for all stakeholders.” Axel Voss is a German politician and member of the European Parliament who has led the effort for copyright reform.

“We look forward to this positive outcome leading to a successful trilogue. Europe’s publishers will then work tirelessly to ensure that people across the EU continue to be free to write, publish, read and benefit from the best possible books and journals.”

‘What a Disaster for Creators’

In more from the contrarian side, author Cory Doctorow at his BoingBoing.net site, is strongly against the direction these measures are going. His formulation of the problem is that when platforms are required to respond to their content usage in the ways mandated by the parliament members, upload filters will come into routine play. “Everything you post, from short text snippets to stills, audio, video, code, etc.” he writes, “will be surveilled by copyright bots run by the big platforms.

“They’ll compare your posts to databases of ‘copyrighted works’ that will be compiled by allowing anyone to claim copyright on anything, uploading thousands of works at a time. Anything that appears to match the ‘copyright database’ is blocked on sight, and you have to beg the platform’s human moderators to review your case to get your work reinstated.”

And as for those “link taxes,” Doctorow writes, “You can’t link to a news story if your link text includes more than a single word from the article’s headline. The platform you’re using has to buy a license from the news site, and news sites can refuse licenses, giving them the right to choose who can criticize and debate the news. …

“What a disaster for creators. Not only will be we liable to having our independently produced materials arbitrarily censored by overactive filters, but we won’t be able to get them unstuck without the help of big entertainment companies. These companies will not be gentle in wielding their new coercive power over us (entertainment revenues are up, but the share going to creators is down: if you think this is unrelated to the fact that there are only four or five major companies in each entertainment sector, you understand nothing about economics).”

‘A Good Thing for Publishing’

In the UK, the Publishers Association—along with the Booksellers Association and Society of Authors—have been similarly welcoming. There’s a kind of sad overcast to their commentary, however, in that Brexit’s realities likely will have removed the UK from the European Union before the Digital Single Market goes into implementation.

The Bookseller’s Charlotte Eyre has a statement from the Publishers Association’s Stephen Lotinga, who says, “The progress made today is a good thing for publishing and the wider creative industries, but there are still a number of further steps to go down before this becomes law.

“We’ve seen through the powerful lobbying efforts of some very large tech firms just how little regard they hold for intellectual property, and ensuring that creators and rights holders are rewarded fairly for their endeavor. We should be pleased with today, but cautious about where they take the fight to next, as it’s certainly not over.”

At the UK’s Booksellers Association, Giles Clifton says, “Along with our colleagues in the European and International Booksellers Federation, we have supported the sensible, proportionate, updating of copyright laws to reflect the digital age.

“This is a vote for common sense, and goes some way, we hope, to protect the interests of rights holders. This will benefit consumers, producers and the book trade.”

Nicola Solomon’s comment, from the Society of Authors in London, is similarly upbeat: “We believe that this is a once-in-a-generation opportunity to make our copyright law fairer for authors and other workers in the creative sector.”

She clarifies that as meaning that, “As well as forcing platforms such as YouTube and Facebook to take greater responsibility for the creative content they host, it contains much-needed provisions which would strengthen the rights of authors.”

‘A Tremendously Important Moment’

We’ve returned to attorney Dr. Jessica Sänger, legal counsel and director of European and international affairs for the Börsenverein des Deutschen Buchhandels, Germany’s Publishers and Booksellers Association. Sänger has been closely involved with the developments leading to Wednesday’s vote, and was, like the International Publishers Association’s Kolman, in Strasbourg for the plenary this week.

Sänger tells Publishing Perspectives, “Yesterday’s vote was a tremendously important moment for German publishers. The European Parliament has sent a strong signal of support to Europe’s creatives and the businesses they work with in order to produce and publish their works by agreeing to Article 13, the provision designed to close the value gap. Along with the press publishers’ right which was also accepted, this was the most controversial issue concerning the copyright directive.

“From the point of view of book publishers, however, these are not the most important issues,” Sänger says, and she’s referring back to issues touched on in her earlier interview with us from July.

“We were very concerned about some angles of the exceptions that the directive proposes to introduce, and—most important of all for German publishers—Article 12, the provision that aims to re-establish legal certainty for a system of collective management which will allow authors and publishers to maintain their joint collective management organizations.”

Here, Sänger reminds us of the 2016 situation in the German market that saw publishers required to return previously collected copyright revenues in certain cases. There’s more information on this, with Sänger’s commentary, here and here.

“The CJEU ruling in the HP/Reprobel case,” she says, “had called this into question, with the results we all  know of: nearly 100 million euros had to be claimed back by VG Wort [the collection agency] alone, and publishers have been cut off from compensation for the harm they suffer when works they own rights to are used under exceptions.”

In looking at Wednesday’s legislative action, Sänger tells Publishing Perspectives, “We fought hard to get the European Commission to take the slightly unusual step of introducing a ‘clarification’ or ‘repair’ clause into the legislative package in the first place, but the clearly unintended massive consequences of the CJEU’s ruling for collective management across Europe were becoming evident.

“The council also recognized the importance of re-establishing legal certainty after the system that had been in place for decades in Germany broke down as a consequence of HP/Reprobel. Despite the fact that authors seemed to benefit from this at first, the main organizations representing authors, translators, and journalists in Germany soon joined CMOs and publishers in calling for a quick adoption of Article 12, since they want to preserve CMOs where authors and publishers can be united in negotiations with manufacturers and other powerful businesses.”

Sänger says that during the discussions in the EU Parliament, Article 12 actually was modified “at the last minute, because of some concerns voiced by authors” and coming from Finland’s copyright revenue organization, Sanasto. Systems of remuneration there, Sänger says, “would not in fact be affected by the provision. The final version therefore still requires improvement, as the change introduces more uncertainty as to the scope and effectiveness of the clause.”

She points out that there was a public statement from Germany’s BuchTage, calling for this to be amended.

“We were very concerned about some angles of the exceptions that the directive proposes to introduce.”Jessica Sänger

“This is something we are confident we’ll be able to address,” Sänger says, in the trilogue stages now to come before the final vote.

“And another area where we see the need for improvement, she says, is in Article 4, the exception for illustration for teaching, which needs to be clearly limited to the use of parts and/or extracts or short works such as poems.

“But generally speaking, the JURI [Legal Affairs Committee] text was a hard-fought and fair compromise, so it’s a great relief that the vast majority of MEPs yesterday understood that and didn’t vote to undermine those compromises or reject the entire directive. This seemed uncertain until the last minute yesterday, and the very clear result of the vote in plenary gives Axel Voss a strong position in trilogue.”

Sänger reminds us that the directive now goes back to JURI in order for the committee to enter into trilogue.

“We expect the interinstitutional negotiations to start very soon, so that they can be concluded before the end of this legislature. Parliament will then vote one last time on the final result.”

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More on the EU’s Digital Single Market legislative efforts is here, and on copyright in general is here.

And our Summer Magazine is ready for your free download and is themed on politics and publishing.

It includes our extensive preview of Frankfurter Buchmesse. Download the PDF here.